Nunez (ID 84911) v. Heimgartner et al

Filing 90

MEMORANDUM AND ORDER granting 83 Defendants James Heimgartner, Tammy Martin, Kevin Vick, Ali Plett, Roland Potter, William Wiedener, and Deanna Morris's Motion to Determine Place of Trial. Jury trial, to be scheduled at a future date, will be held in Wichita. Signed by Magistrate Judge Teresa J. James on 2/20/2018. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDDIE NUNEZ,
Plaintiff,
v.
JAMES HEIMGARTNER, et al.,
Defendants.

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Case No. 15-3259-EFM-TJJ

MEMORANDUM AND ORDER

This matter is before the Court on Defendants James Heimgartner, Tammy Martin, Kevin
Vick, Ali Plett, Roland Potter, William Wiedener, and Deanna Morris’s Motion to Determine
Place of Trial (ECF No. 83).1 In their motion, Defendants seek a determination that Wichita,
Kansas is the appropriate place for trial. Plaintiff has not filed a response.
Plaintiff filed his pro se complaint on November 16, 2015, with no designation of place
of trial. The first mention of trial location was in the parties’ planning report submitted to the
undersigned Magistrate Judge in advance of the Scheduling Conference. The report noted that
Plaintiff (now represented by appointed counsel) wants trial to be held in Kansas City, while the
State Defendants want it to be held in Wichita. The Scheduling Order noted the inconsistent
designations and set a deadline for any Defendant to file a motion seeking a change of place of
trial. The State Defendants timely filed their motion.

Defendants Heimgartner, Martin, Vick, Plett, Potter, and Wiedener identify themselves as
“State Defendants.” Defendant Morris, who is not an employee of the State of Kansas, is
separately represented.
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1

A plaintiff’s choice of forum is generally entitled to great deference,2 but not when the
plaintiff does not reside in the chosen location.3 The court is not bound by the parties’ request
for place of trial and may determine the location on motion or in its discretion.4 In considering a
motion for change of location, the most important factor is the convenience of witnesses.5
In this case, Plaintiff does not dispute that his residence in Hutchinson is closer to
Wichita than to Kansas City, and the witnesses are primarily located in El Dorado and
Hutchinson. Defendants argue the only tie to Kansas City is the location of Plaintiff’s counsel.
While the Court is not insensitive to inconvenience to appointed counsel, their lack of response
to Defendants’ motion indicates their appreciation that the relevant factors point to moving the
place of trial to Wichita.
IT IS THEREFORE ORDERED THAT Defendants James Heimgartner, Tammy
Martin, Kevin Vick, Ali Plett, Roland Potter, William Wiedener, and Deanna Morris’s Motion to
Determine Place of Trial (ECF No. 83) is GRANTED. The jury trial in this case shall be held in
Wichita, Kansas.
IT IS SO ORDERED.

2
E.g., Huggins v. Hayes Co., No. 10-cv-2050-CM-GLR, 2010 WL 2131969, at *1 (D. Kan. May
27, 2010).
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Benson v. Hawker Beechcraft Corp., No. 07-2171-JWL, 2007 WL 1834010, at *2 (D. Kan.
June 26, 2007).
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Id. See also D. Kan. Rule 40.2(e).

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Huggins, 2010 WL 2131969, at *2 (citing Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.
Supp. 667, 669 (D. Kan. 1993)).
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Dated this 20th day of February, 2018, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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